Citation Nr: 0635728
Decision Date: 11/16/06 Archive Date: 11/28/06
DOCKET NO. 04-29 404 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The veteran served on active military duty from July 1952 to
May 1954. This case comes before the Board of Veterans'
Appeals (Board) on appeal from a rating decision from the
Department of Veterans Affairs (VA) Regional Office in
Columbia, South Carolina (RO).
FINDING OF FACT
The objective evidence of record does not show that the
veteran's current hearing loss is related to his military
service.
CONCLUSION OF LAW
Bilateral hearing loss was not incurred in or aggravated by
active military service, nor may it be presumed to have been
so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385
(2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to the veteran's claim for service connection
for bilateral hearing loss, VA has met all statutory and
regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2006). Prior to initial adjudication, a letter dated
in November 2003 satisfied the duty to notify provisions.
The veteran's service medical records, VA medical treatment
records, and indicated private medical records have been
obtained. Additionally, a VA examination has been accorded
the veteran. There is no indication in the record that
additional evidence relevant to the issues decided herein is
available and not part of the claims file. As there is no
indication that any failure on the part of VA to provide
additional notice or assistance reasonably affects the
outcome of this case, the Board finds that any such failure
is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. April
5, 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303. Service connection may also be granted for a disease
first diagnosed after service when all of the evidence
establishes that the disease was incurred in service. Id.
For certain chronic disorders, such as sensorineural hearing
loss, service connection may be granted if the disease
becomes manifest to a compensable degree within one year
following separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Additionally, for the purposes of applying the laws
administered by the VA, impaired hearing will be considered
to be a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent. 38
C.F.R. § 3.385.
To prevail on the issue of service connection there must be
medical evidence of a current disability; medical evidence,
or in certain circumstances, lay evidence of in-service
occurrence or aggravation of a disease or injury; and
evidence of a nexus between an in-service injury or disease
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341,
346 (1999).
The veteran contends that he was exposed to artillery, tanks,
generators, and mortars while serving in the military.
However, the veteran's service medical records are negative
for any findings of hearing loss. Nevertheless, the veteran
served in Korea and his service personnel records indicate
that he engaged in combat with the enemy in active service
during a period of war. As this lay evidence is consistent
with the circumstances, conditions, and hardships of such
service, the veteran's contentions are accepted as sufficient
proof that he was exposed to acoustic trauma while in the
military. See 38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. §
3.304 (2006); see also Peters v. Brown, 6 Vet. App. 540, 543
(1994).
The evidence of record currently shows that the veteran has
hearing loss for VA purposes. See 38 C.F.R. § 3.385.
However, the first objective hearing loss of record was in
October 2000. Accordingly, service connection can not be
granted on a presumptive basis as sensorineural hearing loss
did not become manifest to a compensable degree within one
year following separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Additionally, there is no medical evidence that the veteran's
current hearing loss is related to his military service. A
VA examiner in June 2006, examined the veteran and reported
that the veteran was exposed to military noise exposure, but
was also exposed to post-service civilian occupational noise.
The examiner concluded that "it is less likely than not that
the veteran's current sensorineural hearing loss was the
result of military noise exposure. . . ." The examiner
stated that although the whispered voice tests were within
normal limits on the induction and separation examinations,
this did not rule out hearing loss either before or during
the veteran's military service. However, the examiner based
the opinion provided on the veteran's report that the onset
of his hearing loss was in approximately 1996, and his
service separation was in 1954. There is no medical evidence
of record that refutes this opinion. In this, and in other
cases, only independent medical evidence may be considered to
support Board findings. The Board may not base a decision on
its own unsubstantiated medical conclusions. Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991).
Accordingly, as there is no objective evidence that provides
a nexus between the veteran's current hearing loss and his
military service, the preponderance of the evidence is
against the veteran's claim of entitlement to service
connection for bilateral hearing loss. As the preponderance
of the evidence is against the veteran's claim, the doctrine
of reasonable doubt is not for application. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for bilateral hearing loss is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs